Just about everyone has their favorite lawyer joke, and lawyers are often, and unjustly, blamed for all of the ills that afflict our society. Yet we often lose sight of the importance that the legal profession plays in protecting the ordinary citizen from oppression.
The law is a complex system of rules that govern behavior and determine how wrongs are to be compensated. It is nearly impossible to navigate this system without representation by a lawyer, and the ability to speak freely and in confidence to a lawyer is essential to effective legal representation.Embedded within our legal system is the attorney-client privilege which protects your right to talk to a lawyer about the facts of your case in order to obtain professional assistance. Unless the purpose of your communication is the planning of a crime or other wrongful act, your lawyer cannot disclose what you tell him in confidence, and you cannot be asked what it was that you told your lawyer. Our society places a high value upon frank and open discussions between the client and lawyer. This ensures that the client does not refrain from telling the lawyer the truth, which is necessary for the lawyer to provide an opinion on the law or render other legal assistance.
It is not uncommon that we see a client suffering from an occupational disease who has an incomplete or inaccurate understanding of the cause. This is because exposure to a toxic substance sufficient to cause a serious and sometimes deadly disease often goes undetected at the time it occurs, and it is only through the course of a thorough investigation that the injured person can later identify the circumstances of the exposure and the agents responsible for it. Often a common material used in construction or industry is manufactured with the use of a toxic chemical but there is no label or warning of this on the packaging. This is often the case with asbestos-containing materials.
An example of the problem of proving the cause of disease is malignant mesothelioma. This is a terminal asbestos related cancer that, on average, does not show up until 35 years after the first exposure to asbestos dust. Exposure even at low levels of asbestos dust that are invisible to the naked eye and that can only be detected by sophisticated instruments can cause the development of mesothelioma many years later. Therefore, when a mesothelioma victim comes to our office and advises us that he has no idea whether or not he was ever exposed to asbestos or ever worked with an asbestos containing product, it is important to undertake an investigation to uncover the facts of the case. In such a case, the client’s initial belief about his exposure history often changes as a result of learning more about the composition and the toxic nature of the products he worked with 20 or 30 years in the past.
Here is where the importance of the attorney-client privilege comes into play. Should the lawyers for the asbestos companies be allowed to ask the client what he told his attorney in confidence when the case began? Imagine how the trial would unfold if they were. “And so Mr. Client, is it not true that you told your own lawyer that you have no idea whether you were ever exposed to asbestos from the defendant’s products?” Fortunately, the law does not permit such prying into the communications between lawyer and client. Otherwise, clients would be afraid to level with their lawyers and lawyers would be unable to provide effective representation.
In 1981, the U.S. Supreme Court wrote in Upjohn Co. v. United States that, “The client cannot be compelled to answer the question, ‘What did you say or write to your attorney?’ but may not refuse to disclose any relevant facts within his knowledge merely because he incorporated a statement of such fact into his communication to his attorney.” The distinction is a crucial one, especially because of the widespread but unjustified suspicion of the legal profession. Although a witness may always be asked about the facts underlying his case, it is unacceptable in our system to punish the victim of a negligent or grossly careless act for having sought out effective counsel.